Key court ruling in Atrium dispute with anesthesiologists won't end the fight

A judge has issued an order clearing the way for a new anesthesiology provider to take over at Atrium Health, dealing a blow to an outgoing vendor that sought to block the new firm from starting work next week.

Southeast Anesthesiology Consultants and associated companies had sought a temporary restraining order and preliminary injunction against the new provider, Scope Anesthesia of North Carolina. That request came after Atrium in December hired Scope to provide anesthesiology services at most of its Charlotte-area hospitals, replacing Southeast effective next Monday.

But the judge, Michael Robinson of North Carolina Business Court, also said there's evidence that Atrium, working in concert with Scope, possibly violated contract terms that ban Atrium from soliciting Southeast's doctors or other employees.

Citing that evidence, Robinson has forbidden Atrium and Scope from soliciting or hiring Southeast employees without Southeast's permission until July 2019.

In a statement, Atrium said it was pleased with the judge's decision that ensures Scope can start caring for its patients on Monday. It also said it respects the decision that temporarily prevents it and Scope from soliciting Southeast employees.

"We have consistently expressed our interest in providing an opportunity for these valued doctors to remain a part of our community and continue practicing at Atrium Health," Atrium said. "Nonetheless, this requirement of the court will have no impact on Atrium Health and the transition to Scope Anesthesia on July 1, since Scope has filled its roster with eminently talented physicians."

Friday's action is part of a lawsuit that Southeast and affiliated companies filed in March against Atrium and Scope founder Dr. Thomas Wherry. That suit accuses Wherry, while acting as an Atrium consultant, of stealing Southeast's trade secrets in order to launch his competing firm and win the Atrium contract.

In his order, Robinson said there's no evidence that information disclosed to Wherry constitutes trade secrets.

But he said Southeast and affiliated companies, including Florida-based Mednax, presented evidence that "arguably" shows Atrium and Scope violated the non-solicitation agreements in at least one instance.

In that incident, a management-level Atrium employee and a Southeast physician "indisputably" discussed this year the possibility of the physician going to work for Scope, Friday's order stated. The Atrium employee also helped set up communications between Wherry and the physician, the order said, citing an affidavit from a Mednax president.

Southeast and Mednax said in a statement that they have no plans to drop their case.

Atrium engaged in predatory and unethical behavior by making "illegal attempts" to hire Southeast physicians, and also used proprietary business information without permission, the statement said.

This story was originally published June 25, 2018 at 2:48 PM with the headline "Key court ruling in Atrium dispute with anesthesiologists won't end the fight."